The rhetorical confusion between the administrative and regulatory states

On the occasion of a new Federalist Society nominee to the Supreme Court, I thought it’d be worth explaining a set of issues that are going to repeatedly come before the Court in the coming decades, and explain a confusing set of terms that arises from those issues.

The “Administrative” Procedure Act is about regulation, not administration

The Administrative Procedure Act lays out the rules executive agencies have to follow when creating new, legally binding regulations. So, for example, Congress might pass a law saying the EPA has to regulate pollution of the air and water, and to create corresponding regulations. The Administrative Procedure Act sets the rules by which the EPA is allowed to create those rules.

This is, manifestly, a terrible way to run a regulatory state. The EPA has to pretend to collect “input” from anyone and everyone, then they have to pretend to judge the input, then they get to enact the regulation they wanted to enact in the first place.

Then the people affected by the regulation get to sue and spend years working their way through the courts arguing that the EPA didn’t properly take their input into consideration, or that Congress didn’t have the EPA’s regulation in mind when they passed the law, or that the head of the EPA wasn’t properly confirmed by the Senate, or whatever else the Federalist Society comes up with next week.

Congress ought to pass more, better laws

The Administrative Procedure Act has let Congress off the hook for decades. For example, the entire legal doctrine of sexual harassment has arisen from one sentence in Title VII of the Civil Rights Act of 1964. Instead of passing additional laws specifying what kind of behavior constitutes sexual harassment and what the consequences of it should be, Congress has been happy to let the courts and the Justice Department wander all over the place, interpreting the law however they please.

But we know there’s a better way. When the Supreme Court threw out Lilly Ledbetter’s sex discrimination claim, Nancy Pelosi led Congress in passing the Lilly Ledbetter Fair Pay Act that simply spelled out the legal framework Congress had in mind for assessing sex discrimination claims. If a future Congress wants to assess sex discrimination claims differently, they can pass another law, but it’s no longer up to the Department of Labor or the Supreme Court to fantasize about Congress’s intentions.

We (still) need a well-functioning administrative state

This brings me to the rhetorical confusion I mentioned above: the Administrative Procedure Act is bad, and in my opinion should simply be repealed, but a regulatory state that is explicitly designed and endorsed by Congress will still require administration.

If, instead of the EPA, in consultation with scientists, activists, and lead manufacturers, determining the level of lead that’s acceptable in municipal drinking water, Congress determines and sets into law the level of lead that’s acceptable in municipal drinking water, people will still have to be employed to administer the law: they’ll have to take testing equipment out to Flint, fill up some test tubes, run some tests, and report whether Flint is in compliance or not.

Likewise, the so-called “carried interest loophole” is not a product of any congressional action, it’s the product of the IRS’s interpretation of certain terms within the laws passed by Congress. But even if Congress finally passed a law specifying whether hedge fund management fees should, or should not, be treated as capital gains, the law would still have to be administered by an army of auditors swarming across the nation’s hedge funds making sure they complied.

Don’t leave it up to the judges

In college I fenced in the foil weapon category, which leaves a lot of discretion to referees. They’re asked to determine, in real time, who initiated an offensive action, where on the weapon a defensive move lands, and whether a counteroffensive move is a riposte or a counter-attack. This, naturally, leads to a lot of hurt feelings when you feel the judges don’t give your efforts enough credit.

But my coach, an ornery old Russian lady, never let me mope about the judges. She told me, “don’t leave it up to them.” If you leave it up to the judges, you may as well be flipping a coin. If you want to win, make sure there’s nothing left for the judges to decide.

The worst equilibrium is a dysfunctional Congress and an amateur judiciary

In the Supreme Court’s 2012 hearing over the constitutionality of the Affordable Care Act’s individual mandate, the original amateur justice, Antonin Scalia, drew laughs from the usually staid audience when he suggested that Congress should simply pass another law fixing the defects in the original Act.

Of course, at that point Republicans had taken control of the House of Representatives, so striking down the Affordable Care Act would have meant another generation of Americans without access to affordable health care.

That is, of course, the situation we’re being set up for today: a Congress that is so deeply gerrymandered that it’s incapable of representing the popular will, and a Supreme Court that stands ready to strike down any legislation that is able to pass through Congress.

You don’t need to be a Democrat, or a liberal, or a leftist, to appreciate that a country congenitally unable to pass laws governing itself, that turns itself over to executive agencies and then resigns itself to years or decades of court battles over the slightest minutiae of statecraft, is not a country well-suited to addressing the challenges of this or any other century.

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